Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Toward the end of the Warren Court, there emerged a trend to treat classifications on the basis of nationality or alienage as suspect,1 to accord sex classifications a somewhat heightened traditional review while hinting that a higher standard might be appropriate if such classifications passed lenient review,2 and to decide cases concerning statutory and administrative treatments of children born out of wedlock inconsistently.3 Language in a number of opinions appeared to suggest that poverty was a suspect condition, so that treating the poor adversely might call for heightened equal protection review.4

However, in a major evaluation of equal protection analysis early in this period, the Court reaffirmed a two-tier approach, determining that where the interests involved that did not occasion strict scrutiny, the Court would decide the case on minimum rationality standards. Justice Lewis Powell, writing for the Court in San Antonio School Dist. v. Rodriguez,5 decisively rejected the contention that a de facto wealth classification, with an adverse impact on the poor, was either a suspect classification or merited some scrutiny other than the traditional basis,6 a holding that has several times been strongly reaffirmed by the Court.7 But the Court’s rejection of some form of intermediate scrutiny did not long survive.

Without extended consideration of the issue of standards, the Court more recently adopted an intermediate level of scrutiny, perhaps one encompassing several degrees of intermediate scrutiny. Thus, gender classifications must, in order to withstand constitutional challenge, “serve important governmental objectives and must be substantially related to achievement of those objectives.” 8 And classifications that disadvantage persons born out of wedlock are subject to a similar though less exacting scrutiny of purpose and fit.9 This period also saw a withdrawal of the Court from the principle that alienage is always a suspect classification, so that some discriminations against aliens based on the nature of the political order, rather than economics or social interests, need pass only the lenient review standard.10

The Court has so far resisted further expansion of classifications that must be justified by a standard more stringent than rational basis. For example, the Court has held that age classifications are neither suspect nor entitled to intermediate scrutiny.11 Although the Court resists the creation of new suspect or “quasi-suspect” classifications, it may still, on occasion, apply the Royster Guano rather than the Lindsley standard of rationality.12

Footnotes

1

Graham v. Richardson, 403 U.S. 365, 371–72 (1971).

2

Reed v. Reed, 404 U.S. 71 (1971); for the hint, see Eisenstadt v. Baird, 405 U.S. 438, 447 n.7 (1972).

3

See Levy v. Louisiana, 391 U.S. 68 (1968) (strict review); Labine v. Vincent, 401 U.S. 532 (1971) (lenient review); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972) (modified strict review).

4

Cf. McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 807 (1969); Bullock v. Carter, 405 U.S. 134 (1972). See Shapiro v. Thompson, 394 U.S. 618, 658–59 (1969) (Harlan, J., dissenting). But cf. Lindsey v. Normet, 405 U.S. 56 (1972); Dandridge v. Williams, 397 U.S. 471 (1970).

5

San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).

6

Id. at 44–45. The Court asserted that only when there is an absolute deprivation of some right or interest because of inability to pay will there be strict scrutiny. Id. at 20.

7

E.g., United States v. Kras, 409 U.S. 434 (1973); Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980).

8

Craig v. Boren, 429 U.S. 190, 197 (1976). Justice Lewis Powell noted that he agreed the precedents made clear that gender classifications are subjected to more critical examination than when “fundamental” rights and “suspect classes” are absent, id. at 210 (concurring), and added: “As is evident from our opinions, the Court has had difficulty in agreeing upon a standard of equal protection analysis that can be applied consistently to the wide variety of legislative classifications. There are valid reasons for dissatisfaction with the ‘two-tier’ approach that has been prominent in the Court’s decisions in the past decade. Although viewed by many as a result-oriented substitute for more critical analysis, that approach—with its narrowly limited ‘upper tier'—now has substantial precedential support. As has been true of Reed and its progeny, our decision today will be viewed by some as a ‘middle-tier’ approach. While I would not endorse that characterization and would not welcome a further subdividing of equal protection analysis, candor compels the recognition that the relatively deferential ‘rational basis’ standard of review normally applied takes on a sharper focus when we address a gender-based classification. So much is clear from our recent cases.” Id. at 210, n.*. Justice Stevens wrote that in his view the two-tiered analysis does not describe a method of deciding cases “but rather is a method the Court has employed to explain decisions that actually apply a single standard in a reasonably consistent fashion.” Id. at 211, 212. Chief Justice Warren Burger and Justice William Rehnquist would employ the rational basis test for gender classification. Id. at 215, 217 (dissenting). Occasionally, because of the particular subject matter, the Court has appeared to apply a rational basis standard in fact if not in doctrine, E.g., Rostker v. Goldberg, 453 U.S. 57 (1981) (military); Michael M. v. Superior Court, 450 U.S. 464 (1981) (application of statutory rape prohibition to boys but not to girls). Four Justices in Frontiero v. Richardson, 411 U.S. 677, 684–87 (1973), were prepared to find sex a suspect classification, and in Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 n.9 (1982), the Court appeared to leave open the possibility that at least some sex classifications may be deemed suspect.

9

Mills v. Habluetzel, 456 U.S. 91, 99 (1982); Parham v. Hughes, 441 U.S. 347 (1979); Lalli v. Lalli, 439 U.S. 259 (1978); Trimble v. Gordon, 430 U.S. 762 (1977). In Mathews v. Lucas, 427 U.S. 495, 506 (1976), the Court commented that discrimination against children born out of wedlock had not historically “approached the severity or pervasiveness” of discrimination against women and Black people. Lucas sustained a statutory scheme virtually identical to the one struck down in Califano v. Goldfarb, 430 U.S. 199 (1977), except that the latter involved sex while the former involved a classification generally based on whether a child was born out of wedlock.

10

Applying strict scrutiny, See, e.g., Sugarman v. Dougall, 413 U.S. 634 (1973); Nyquist v. Mauclet, 432 U.S. 1 (1977). Applying lenient scrutiny in cases involving restrictions on alien entry into the political community, see Foley v. Connelie, 435 U.S. 291 (1978); Ambach v. Norwick, 441 U.S. 68 (1979); Cabell v. Chavez-Salido, 454 U.S. 432 (1982). See also Plyler v. Doe, 457 U.S. 202 (1982).

11

Mass. Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (upholding mandatory retirement at age 50 for state police); Vance v. Bradley, 440 U.S. 93 (1979) (mandatory retirement at age 60 for foreign service officers); Gregory v. Ashcroft, 501 U.S. 452 (1991) (mandatory retirement at age seventy for state judges). See also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442 (1985) (holding that a lower court erred in holding that intellectual disability was a quasi-suspect classification meriting “a more exacting standard of judicial review than is normally accorded economic and social legislation” ).

12

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985); see discussion, supra.